Consultation Paper No

Transcription

1 Consultation Paper No Proceeds of Crime (Supervisory Bodies) (Jersey) Law 2008: Fees for registered persons A consultation on proposals regarding fee rates and associated issues. Issued: October 2018 Page 1 of 15

2 Consultation Paper Consultation Paper The Jersey Financial Services Commission (JFSC) invites comments on this consultation paper by 30 November If you require any assistance, clarification or wish to discuss any aspect of the proposal prior to formulating a response, it is of course appropriate to contact the JFSC. The JFSC contact is: Jon Stevens Senior Adviser Jersey Financial Services Commission PO Box Castle Street St Helier Jersey JE4 8TP Telephone: +44 (0) j.stevens@jerseyfsc.org Alternatively, Lisa Springate at Jersey Finance Limited (JFL) is coordinating an Industry response that will incorporate any matters raised by local businesses. Comments should be submitted to JFL by 30 November The JFL contact is: Lisa Springate Head of Technical Jersey Finance Limited 4 th Floor, Sir Walter Raleigh House Esplanade St Helier Jersey JE2 3QB Telephone: +44 (0) lisa.springate@jerseyfinance.je It is the policy of the JFSC to make the content of all responses available for public inspection (unless specifically requested otherwise by the respondent). It is the policy of JFL (unless otherwise requested or agreed) to collate all responses and share them verbatim with the JFSC on an anonymised basis (with reference made only to the type of respondent, e.g. individual, law firm, trust company etc.). This collated, anonymised response will, typically, be placed in JFL s permanent electronic archive which is currently open to all JFL members. Page 2 of 15

3 Glossary of Terms Glossary of Terms Defined terms are indicated throughout this document as follows: AML/CFT DNFBP JFSC/Commission the Law MONEYVAL anti-money laundering / countering the financing of terrorism designated non-financial businesses and professions (a term used to refer to persons registered under the Law) Jersey Financial Services Commission Proceeds of Crime (Supervisory Bodies) (Jersey) Law 2008, as amended Committee of Experts on the Evaluation of Anti-Money Laundering Measures and the Financing of Terrorism Page 3 of 15

4 Table of Contents Table of Contents 1 Consultation... 5 Basis for consultation... 5 Who will be affected by the proposed changes?... 5 Responding to the consultation... 5 Next steps Fee proposals... 6 Proposed fee rate increase... 6 Proposed changes to fee rates... 6 Proposed introduction of late filing fee... 6 Appendix A: List of Representative Bodies who have been sent this Consultation Paper... 7 Appendix B: Draft Accountants and Lawyers Fees Notice... 8 Appendix C: Draft Registered Persons Fees Notice Page 4 of 15

5 Summary of Questions 1 Consultation Basis for consultation Under the Proceeds of Crime (Supervisory Bodies) (Jersey) Law 2008 (the Law), the JFSC is the supervisory body responsible for regulated persons activity covered by the Law, as well as having been designated as the supervisory body for persons registered with the JFSC under the Law. Article 20 of the Law allows the Commission to charge fees to persons subject to the Law Article 21(6) of the Law requires that before the JFSC may publish any fee the [Commission] shall publish a report that includes - (a) details of the proposed fee; (b) a request for comments on the level of the proposed fee; and (c) a date, that is at least 28 days after the publication of the report, before which those comments may be made to the [Commission] The JFSC considers that this consultation paper constitutes such a report as required by the Law. Who will be affected by the proposed changes? The proposed new fees will affect all persons registered under the Law, and persons that become registered on or after 1 January Responding to the consultation The JFSC invites comments in writing from interested parties on the proposals included in this consultation paper. Where comments are made by an industry body or association, that body or association should also provide a summary of the type of individuals and/or institutions that it represents Comments should be received by the JFSC or Jersey Finance no later than 30 November 2018 Next steps Following this consultation, the JFSC will publish feedback to this Consultation Paper and final fees notices in December The new fee rates will take effect from 1 January Firms will be notified when they need to use the myjfsc portal to collect their invoices or to supply employee data and should not make payments before this time. Page 5 of 15

6 Schedule 2 fees consultation 2 Fee proposals Proposed fee rate increase The JFSC proposes to increase fee rates (and the level of the fee cap) by 21.8% for The majority of this increase is due to the phased withdrawal of a current contribution that the JFSC receives from the Jersey Government. Proposed changes to fee rates From 2008 to 2016, the Government contributed 248,965 each year to subsidise the cost of regulation for the DNFBP sector. As outlined in last year s consultation (No ) the Government decided to withdraw this contribution in stages over the course of 2018 and In 2018 the contribution was 165,977 and in 2019 it will be 82,988. From 2020 onwards there will be no contribution. As explained last year, the JFSC needs to recoup the withdrawn Government contribution from DNFBP firms through their annual fees (i.e. this is a transfer of cost from the Jersey taxpayer to firms) Following the same approach as last year, we propose an increase to the fee rates of 21.8% overall, being: A 4.3% increase reflecting the latest rate of annual Jersey inflation (for the year to September 2018); plus A 17.5% increase to collect the 83k reduction in the Government payment; Making a total proposed fee rate increase of 21.8% (fee rates will be rounded to the nearest 1) This increase will take the sole trader fee to 352. The fee cap will increase to 17,590 (rounded to the nearest 10). The draft fees notices can be found in Appendix B (for accountants and lawyers) and Appendix C (for other types of firm) Question 1 Do you agree with the proposal to change DNFBP fee rates? Proposed introduction of late filing fee In all other industry sectors, the JFSC levies a late filing fee of 100 per month for documents that are required by law, but that are not provided to the JFSC by their due date It is proposed to introduce a late filing fee provision to the fees notices for DNFBP firms for parity with other industry sectors and to act as a disincentive for the late filing of documents under the law Question 2 Do you agree with the proposed introduction of late filing fees? Page 6 of 15

7 Appendix A List of Bodies Appendix A: List of Representative Bodies who have been sent this Consultation Paper 1.1 Association of English Solicitors practising in Jersey 1.2 Institute of Chartered Secretaries and Administrators, Jersey branch 1.3 Institute of Directors, Jersey branch 1.4 Jersey Association of Directors and Officers 1.5 Jersey Chamber of Commerce and Industry 1.6 Jersey Compliance Officers Association 1.7 Jersey Estate Agents Association 1.8 Jersey Finance Limited 1.9 Jersey Society of Chartered and Certified Accountants 1.10 Law Society of Jersey Page 7 of 15

8 Appendix B Draft Accountants and Lawyers Fees Notice Appendix B: Draft Accountants and Lawyers Fees Notice Published in accordance with: Payable by or in relation to: Pursuant to: Commencement date: Notice of Fees Article 21 of the Proceeds of Crime (Supervisory Bodies) (Jersey) Law 2008, as amended Firms of accountants and firms of lawyers Article 20 of the Proceeds of Crime (Supervisory Bodies) (Jersey) Law 2008, as amended The fees set out in this notice and the attached schedule are effective for the period from 1 January 31 December Interpretation 1.1 In this notice, unless the context otherwise requires a firm of accountants a firm of lawyers contract of employment, contract of service or partnership agreement JFSC/Commission relevant date relevant employee means a person or persons (including but not limited to a sole trader) who carry on business alone or with others that falls within the scope of paragraph 2 of Part B of Schedule 2 of the Proceeds of Crime (Jersey) Law 1999, as amended, and who are required to hold a Level 2 registration under the Supervisory Bodies Law; means a person or persons (including but not limited to a sole trader) who carry on business alone or with others that falls within the scope of paragraph 1 of Part B of Schedule 2 of the Proceeds of Crime (Jersey) Law 1999, as amended, and who are required to hold a Level 2 registration under the Supervisory Bodies Law; means an agreement between two or more parties whether express or implied and (if it is express) whether oral or in writing; means the Jersey Financial Services Commission means the last working day of the year immediately preceding the calendar year to which the fee relates; means an individual who: (a) works under a contract of employment or any other contract of service; (b) practises alone or with others under the terms of a partnership agreement; or (c) is otherwise engaged within the business of a firm of accountants or lawyers, in all cases where the individual undertakes to do or perform, directly or indirectly, any work or service within a firm of accountants or Page 8 of 15

9 Appendix B Draft Accountants and Lawyers Fees Notice lawyers, whether or not engaged directly by the firm of accountants or lawyers or through another entity forming part of the group of entities of which the firm of accountants or lawyers is a part, and the firm of accountants or lawyers is not by virtue of the contract a client or customer of the individual, and relevant employee shall be construed accordingly; sole trader means a person who is the sole proprietor of a firm of accountants or lawyers and who does not practise law or accountancy with any other person and who does not engage any relevant employee; Supervisory Bodies Law means the Proceeds of Crime (Supervisory Bodies) (Jersey) Law 2008, as amended. 2 Calculation of number of relevant employees 2.1 For clarity, for the purposes of this notice relevant employee includes but is not limited to: (a) (b) (c) (d) a partner practising law or accountancy whether alone or with others; an individual classified as self-employed for tax or social security purposes but in all other respects meets the definition of relevant employee; an individual based or working outside Jersey but engaged within the Jersey business of the firm of accountants or lawyers; and an individual engaged by a firm of accountants or lawyers which is a Jersey entity wherever in the world that individual works or is based and whether or not that individual is engaged in the Jersey business of that firm of accountants or lawyers. 2.2 For individuals with fixed term contracts that do not span the full calendar year, the hours worked should be annualised and the bandings (see paragraph 8.3) applied when calculating the number of relevant employees. 2.3 The following bandings should be applied when calculating the number of total relevant employees: (a) up to and including 9 hours per week 0.25 of a person; (b) over 9 hours and up to and including 18 hours per week 0.50 of a person; (c) over 18 hours and up to and including 27 hours per week 0.75 of a person; (d) over 27 hours per week 1 person. 2.4 The calculation of the number of relevant employees should be undertaken as at the relevant date based upon the relevant employee s engagement over the preceding 12 months. If, on the relevant date, there exists a post that is vacant but would normally be occupied by an individual who meets the definition of a relevant employee the calculation should include that position. 2.5 Example 1: fixed term contract. An individual who has a fixed term contract and is contracted to work full time (35 hours per week) for four months would equate to: 35 hours x 4 months 12 months = hours per week The individual would therefore be equivalent to 0.5 of a person in calculating the number of relevant employees. Page 9 of 15

10 Appendix B Draft Accountants and Lawyers Fees Notice 2.6 Example 2: part time working. An individual who is employed part time for the whole year at 25 hours per week would represent 0.75 of a person in the calculation of the number of relevant employees. 2.7 Example 3: part time working + fixed term contract. An individual who is employed part time on a fixed contract (20 hours per week for 6 months) would equate to: 20 hours x 6 months 12 months = 10 hours per week The individual would therefore be equivalent to 0.5 of a person in calculating the number of relevant employees NOT 0.75 of a person. 3 Annual fee 3.1 Firms of accountants and firms of lawyers shall pay an annual fee of an amount calculated in accordance with the table set out in the Schedule. 3.2 Payment of the annual fee should be made as follows: (a) (b) in full, on or before 31 March 2019; or where the annual fee due is at least 1,000, and firms of accountants and firms of lawyers indicate that they intend to pay the annual fee on an instalment basis, then the annual fee is payable in four equal instalments. Payments should be made on or before: (i) 31 March 2019; (ii) 30 June 2019; (iii) 30 September 2019; and (iv) 31 December The annual fee is subject to a fee cap of 17, Late payment of fees and/or late submission of fees information 4.1 If the annual fee (or an instalment payment, if relevant) is not received in full by the JFSC by the due date, an additional late payment fee of 5% of the unpaid principal amount will be applied on the day after the due date, and on the 1st day of each calendar month after that. 4.2 If the firm does not supply the required information to calculate its fee by 31 March 2019, an administration fee of 100 will be charged on 1 April 2019, and on the 1st day of each calendar month after that while the information is still outstanding. This is in addition to the late payment fee set out in paragraph 10.1 which will be calculated once the information has been submitted. 5 Application fee 5.1 An application fee of 100 shall be payable in respect of an application by a firm of accountants or a firm of lawyers wishing to be registered under the Supervisory Bodies Law. 5.2 The application fee is due at the time of application and is non-refundable. 6 Late filing fees 6.1 If a registered person fails to file or deliver any document to the JFSC under the provisions of the Supervisory Bodies Law or under any provisions of any Order issued in accordance with the Supervisory Bodies Law on or before the date that the document becomes due, the registered person shall be liable to pay a fee of 100 for each complete month or part thereof that the document remains un-filed or undelivered unless the registered person has given the JFSC prior written notice of the reasons for the late filing or delivery of a document and the JFSC Page 10 of 15

11 Appendix B Draft Accountants and Lawyers Fees Notice has agreed in writing that the filing may be late. Any such later agreed date shall become the due date for the purposes of the calculation and the payment of late filing fees. Schedule Base Fee Relevant employee element Sole Trader 352 Not applicable All other firms 1,406 Plus: 175 per relevant employee calculated in accordance with this notice (the total annual fee is capped at 17,590) Page 11 of 15

12 Appendix C Draft Registered Persons Fees Notice Appendix C: Draft Registered Persons Fees Notice Published in accordance with: Payable by or in relation to: Pursuant to: Commencement date: Notice of Fees Article 21 of the Proceeds of Crime (Supervisory Bodies) (Jersey) Law 2008, as amended Registered Persons (specified Schedule 2 business, including estate agency services and lending but excluding services provided by firms of accountants and firms of lawyers) Article 20 of the Proceeds of Crime (Supervisory Bodies) (Jersey) Law 2008, as amended The fees set out in this notice and the attached schedule are effective for the period from 1 January 31 December Interpretation 7.1 In this notice, unless the context otherwise requires contract of employment, contract of service or partnership agreement JFSC/Commission registered person relevant date relevant employee means an agreement between two or more parties whether express or implied and (if it is express) whether oral or in writing; means the Jersey Financial Services Commission means a person or persons (including but not limited to a sole trader): (a) who carries on business alone or with others that falls within the scope of Schedule 2 of the Proceeds of Crime (Jersey) Law 1999, as amended, EXCEPT business that is defined in paragraphs 1 and 2 (lawyers and accountants) of Part B of Schedule 2; and (b) who is required to hold either a Level 1 or Level 2 registration under the Supervisory Bodies Law; means the last working day of the year immediately preceding the calendar year to which the fee relates; means an individual who: (d) works under a contract of employment or any other contract of service; (e) practises alone or with others under the terms of a partnership agreement; or (f) is otherwise engaged within the business of a registered person, in all cases where the individual undertakes to do or perform, directly or indirectly, any work or service within a registered person, whether Page 12 of 15

13 Appendix C Draft Registered Persons Fees Notice or not engaged directly by the registered person or through another entity forming part of the group of entities of which the registered person is a part, and the registered person is not by virtue of the contract a client or customer of the individual, and relevant employee shall be construed accordingly; sole trader means a person who is the sole proprietor of a registered person and who does not practise Schedule 2 business with any other person and who does not engage any relevant employee; Supervisory Bodies Law means the Proceeds of Crime (Supervisory Bodies) (Jersey) Law 2008, as amended. 8 Calculation of number of relevant employees 8.1 For clarity, for the purposes of this notice relevant employee includes but is not limited to: (e) (f) (g) (h) a partner carrying on Schedule 2 business whether alone or with others; an individual classified as self-employed for tax or social security purposes but in all other respects meets the definition of relevant employee; an individual based or working outside Jersey but engaged within the Jersey business of the registered person; and an individual engaged by a registered person which is a Jersey entity wherever in the world that individual works or is based and whether or not that individual is engaged in the Jersey business of that registered person. 8.2 For individuals with fixed term contracts that do not span the full calendar year, the hours worked should be annualised and the bandings (see paragraph 8.3) applied when calculating the number of relevant employees. 8.3 The following bandings should be applied when calculating the number of total relevant employees: (e) up to and including 9 hours per week 0.25 of a person; (f) over 9 hours and up to and including 18 hours per week 0.50 of a person; (g) over 18 hours and up to and including 27 hours per week 0.75 of a person; (h) over 27 hours per week 1 person. 8.4 The calculation of the number of relevant employees should be undertaken as at the relevant date based upon the relevant employee s engagement over the preceding 12 months. If, on the relevant date, there exists a post that is vacant but would normally be occupied by an individual who meets the definition of a relevant employee the calculation should include that position. 8.5 Example 1: fixed term contract. An individual who has a fixed term contract and is contracted to work full time (35 hours per week) for four months would equate to: 35 hours x 4 months 12 months = hours per week The individual would therefore be equivalent to 0.5 of a person in calculating the number of relevant employees. 8.6 Example 2: part time working. An individual who is employed part time for the whole year at 25 hours per week would represent 0.75 of a person in the calculation of the number of relevant employees. Page 13 of 15

14 Appendix C Draft Registered Persons Fees Notice 8.7 Example 3: part time working + fixed term contract. An individual who is employed part time on a fixed contract (20 hours per week for 6 months) would equate to: 20 hours x 6 months 12 months = 10 hours per week The individual would therefore be equivalent to 0.5 of a person in calculating the number of relevant employees NOT 0.75 of a person. 9 Annual fee 9.1 Registered persons shall pay an annual fee of an amount calculated in accordance with the table set out in the Schedule. 9.2 Payment of the annual fee should be made as follows: (c) (d) in full, on or before 31 March 2019; or where the annual fee due is at least 1,000, and firms of accountants and firms of lawyers indicate that they intend to pay the annual fee on an instalment basis, then the annual fee is payable in four equal instalments. Payments should be made on or before: (v) 31 March 2019; (vi) 30 June 2019; (vii) 30 September 2019; and (viii) 31 December The annual fee is subject to a fee cap of 17, Late payment of fees and/or late submission of fees information 10.1 If the annual fee (or an instalment payment, if relevant) is not received in full by the JFSC by the due date, an additional late payment fee of 5% of the unpaid principal amount will be applied on the day after the due date, and on the 1st day of each calendar month after that If the firm does not supply the required information to calculate its fee by 31 March 2019, an administration fee of 100 will be charged on 1 April 2019, and on the 1st day of each calendar month after that while the information is still outstanding. This is in addition to the late payment fee set out in paragraph 10.1 which will be calculated once the information has been submitted. 11 Application fee 11.1 An application fee of 100 shall be payable in respect of an application by a firm of accountants or a firm of lawyers wishing to be registered under the Supervisory Bodies Law The application fee is due at the time of application and is non-refundable. 12 Late filing fees 12.1 If a registered person fails to file or deliver any document to the JFSC under the provisions of the Supervisory Bodies Law or under any provisions of any Order issued in accordance with the Supervisory Bodies Law on or before the date that the document becomes due, the registered person shall be liable to pay a fee of 100 for each complete month or part thereof that the document remains un-filed or undelivered unless the registered person has given the JFSC prior written notice of the reasons for the late filing or delivery of a document and the JFSC has agreed in writing that the filing may be late. Any such later agreed date shall become the due date for the purposes of the calculation and the payment of late filing fees. Page 14 of 15

15 Appendix C Draft Registered Persons Fees Notice Schedule Base Fee Relevant employee element Sole Trader 352 Not applicable All other firms 703 Plus: 175 per relevant employee calculated in accordance with this notice (the total annual fee is capped at 17,590) Page 15 of 15